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On April 24, 2015 the Supreme Court of Canada decided the Canadian Charter of Rights and Freedoms’ guarantee of minority-language educational rights protects substantive equality of minority-language education, not merely formal equality – and this is measured by the quality of the educational experience, not costs and practicalities. The SCC’s decision moves minority-language educational rights to the next level: from the question whether there’s a right, to what that right looks like.

The decision could obligate Provincial Governments and school districts (or equivalents) to ante up additional resources to the required level. And it might impact on Provincial governments’ delivery of minority-language educational rights sooner rather than later: on April 23, 2015 the NB government announced it will ask the NB Court of Appeal to hear a reference case on the government’s constitutional obligations to provide separate school buses for anglophone and francophone students.

Minority French-language children in a Vancouver neighbourhood attend an overcrowded French-language school. The facilities are inferior to those of English-language school in the same catchment area, including small classrooms (some with no window), a smaller library and lengthier bussing times. Parents of children attending the French-language school asked the Court to declare the French-language educational services provided to their children weren’t equivalent to those available to the majority English-languages schools in the catchment area – and this breached their minority language educational rights protected by the Canadian Charter of Rights and Freedoms (Section 23). The SCC agreed:

The Test is Substantive Equality. Minority-language students are entitled to have a meaningfully similar quality educational experience to that of the majority-language students. The Charter requires the quality of services provided to the minority-language students be substantively equivalent to that provided to the majority-language students – not merely formal equivalence.

The Measure of Substance. Substantive equality is measureable. Assessing it is a holistic, comparative exercise that considers together varied factors reasonable parents of the minority-language students use to assess whether the overall educational experience is inferior – and would discourage them from enrolling their children in the minority school. The focus is the substantive – not merely formal – equivalence of the educational experience, making markers like per capita cost and practicalities irrelevant to the requirement for educational equivalence – in other words, at this stage of the process.

More to Come. It’s important to remember this case isn’t over yet: the parents asked the Court to deal with the case in phases in the hope the Province would take action if the parents won the first round, making it unnecessary to finish the case in Court. So this decision only deals with the first hurdle: whether there’s a breach of the Charter’s minority-language educational rights on its face. Technically, the case could go back to trial to deal with the question whether the responsible body can justify its breach.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.